Paladin v. United States

          MEMORANDUM AND ORDER

          Paul Barbadoro United States District Judge

         In 2010, Patricio Paladin was convicted of conspiracy to distribute cocaine, three counts of cocaine distribution, and one count of possession with intent to distribute cocaine. He was sentenced to a mandatory term of life in prison on the conspiracy count based upon the quantity of cocaine at issue, and the fact that this was Paladin’s third felony drug conviction. He was sentenced to 300 months in prison on each of the four other counts, all to run concurrently. Paladin unsuccessfully appealed his conviction and sentence to the First Circuit Court of Appeals, and then sought a writ of certiorari, which the United States Supreme Court denied. Here, Paladin, proceeding pro se, has brought a motion pursuant to 28 U.S.C. § 2255 to vacate his sentence.

         I. BACKGROUND

         In October 2010, Paladin was charged with a five-count superseding indictment. CR Doc. No. 37.^[1] Count One charged Paladin with conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine. Counts Two and Three charged cocaine distribution, but did not allege a specific drug quantity. Count Four alleged distribution of cocaine in excess of 500 grams, and Count Five charged possession with intent to distribute cocaine in excess of 500 grams. Before trial, the government filed a notice, pursuant to 21 U.S.C. § 851(a), announcing that Paladin was subject to an enhanced sentence, including a mandatory term of life in prison, because of his two previous felony drug convictions. CR Doc. No. 30 (the § 851(a)(1) notice).

         Paladin nonetheless proceeded to trial, where the jury found him guilty on all five counts. The jury further concluded, in response to special verdict questions, that the government had proved beyond a reasonable doubt that Counts Four and Five each involved more than 500 grams of cocaine. CR Doc. No. 51. I subsequently sentenced Paladin. On Count One, I imposed the mandatory sentence, pursuant to 21 U.S.C. § 841(b)(1)(A)(ii), of life in prison. On Counts Two through Five, I sentenced Paladin to 300 months in prison on each count, to run concurrently.

         Paladin appealed his conviction and sentence to the First Circuit. On appeal, he argued, among other things, that his sentence on Count One was unconstitutional because “the indictment did not reference his two prior felony convictions, and because the jury was not required to find beyond a reasonable doubt that he had been convicted of these crimes." United States v. Paladin, 748 F.3d 438, 451 (1st Cir. 2014). Paladin also claimed that the jury instructions as to Count One were improper because, he asserted, I did “not submit[] to the jury the question of whether Paladin was individually responsible for the charged quantity of cocaine (five kilograms or more)." Id. at 452. The First Circuit rejected these and other arguments, and affirmed. Id. at 454. Paladin then sought a writ of certiorari, which the Supreme Court denied in November 2014. He filed his § 2255 motion in January 2016.^[2]

         II. ANALYSIS

         Paladin presses five arguments here. He contends that his life sentence on Count One is unlawful because: (1) the indictment did not mention his two prior felony drug convictions, and the jury did not find that he had been convicted of those crimes, (2) the indictment did not identify his previous convictions as, he claims, 21 U.S.C. § 851(a)(2) required, and (3) according to Paladin, the jury did not find, beyond a reasonable doubt, that he was responsible for the five or more kilograms of cocaine alleged in the indictment. With respect to the other counts, Paladin complains that (4) the jury did not find facts that increased his advisory guideline sentencing range, and (5) according to Paladin, the 300 month sentences imposed on Counts Two and Three exceed the statutory maximum penalty for those charges. Having carefully considered Paladin’s § 2255 motion and subsequent reply brief, I reject each argument in turn.^[3]

         A. Prior Convictions Not Found by Jury

         Paladin first contends that his sentence on Count One is unlawful because the indictment did not reference his two previous felony drug convictions, and the jury did not find that he had been convicted of those crimes. Paladin presented, and the First Circuit rejected, this argument on direct review. See Paladin, 748 F.3d at 451-52. I do the same here.^[4]

         Facts that “expose a defendant to a punishment greater than that otherwise legally prescribed [are] by definition ‘elements’ of a separate legal offense." Apprendi v. New Jersey, 530 U.S. 466, 483 n.10 (2000). Those facts generally must be “alleged in the indictment and found by the jury." Id. In Almendarez-Torres v. United States, 523 U.S. 224, 227 (1998), however, the Supreme Court “recognized a narrow exception to this general rule for the fact of a prior conviction." Alleyne v. United States, 133 S.Ct. 2151, 2160 n.1 (2013). Thus, “the fact of a prior conviction need not be proven to a jury beyond a reasonable doubt for sentencing purposes, even when it exposes a defendant to a higher sentence." United States v. Moon, 802 F.3d 135, 151-52 (1st Cir. 2015).

         The Supreme Court expressly declined to revisit Almendarez-Torres in Alleyne v. United States, 133 S.Ct. at 2160 n.1, and, since Alleyne, the First Circuit has repeatedly held that Almendarez-Torres remains good law. See, e.g., Moon, 802 F.3d at 151-52; United States v. Rodriguez, 759 F.3d 113, 122 (1st Cir. 2014); Paladin, 748 F.3d at 451-52. Although Paladin may disagree with those decisions, see CV Doc. No. 9 at 14 (arguing that Almendarez-Torres “has been eroded by the Supreme Court’s subsequent Sixth Amendment jurisprudence"), they are binding here. See United States v. Jimenez-Banegas, 790 F.3d 253, 258-59 (1st Cir. 2015) (applying Almendarez-Torres, and noting that “the Supreme Court has clearly stated that we should not conclude that its more recent cases have, by implication, overruled an earlier precedent"). And, based upon these now well-settled principles, Paladin’s argument -- that his prior convictions should have been alleged in the indictment and found by the jury -- fails. See Paladin, 748 F.3d at 451-52.

         B. Section 851(a)(2) Argument

         Paladin also appears to contend that his sentence on Count One was improper because, he claims, 21 U.S.C. § 851(a)(2) required the government to list his prior felony drug convictions in the indictment. See CV Doc. No. 3 at 55-57. As Paladin did not raise this argument either at trial or on direct review, he has procedurally defaulted on this claim. See Owens v. United States, 483 F.3d 48, 56 (1st Cir. 2007). I may therefore consider Paladin’s argument only if he can show both cause for the default and actual prejudice.^[5] Id. Paladin did not attempt to meet either requirement in his motion, nor can he.

         21 U.S.C. § 851 sets out “a multi-step procedure [that must] be followed before an enhanced sentence [can be] imposed based on prior felony drug convictions." United States v. Dickerson, 514 F.3d 60, 64 (1st Cir. 2008). Section 851(a)(1) requires the government to file and serve an “information" before trial that lists the defendant’s previous convictions. Id. Section 851(a)(2) further provides that, “[a]n information may not be filed under this section if the increased punishment which may be imposed is imprisonment for a term in excess of three years unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed." In other words, except in cases where a defendant waives the right, § 851(a)(2) generally requires that “the federal drug crime at bar must be prosecuted by indictment." United States v. Harden, 37 F.3d 595, 601 (11th Cir. 1994).

         Here, the government indisputably (1) prosecuted Paladin by indictment for the conspiracy alleged in Count One, and (2) filed an information pursuant to § 851(a)(1) before trial that included Paladin’s two prior felony drug convictions. See CR Doc. Nos. 30; 37. Paladin nonetheless asserts that the government failed to comply with § 851(a) because the indictment itself did not list his prior convictions. I disagree.

         Section 851(a)(2)’s text does not support Paladin’s claim that the indictment itself must include a defendant’s prior convictions. Nor does Paladin provide any authority that supports his interpretation of the statute, and I am aware of none. Indeed, the Eleventh Circuit has concluded “that § 851(a)(2) is not even arguably susceptible to" the construction Paladin proposes. United States v. McLean, 138 F.3d 1398, 1407 (11th Cir. 1998) (rejecting the “suggestion . . . that we interpret the subsection to require the prior conviction ...